Politics

One obscure judge can issue a ruling that denies a President his duly authorized constitutional obligation to “faithfully” execute the laws passed by Congress in regards to illegal immigration. One judge on the Supreme Court can re-define a term in a statute contrary to what its authors said it was and thereby foist upon the entire nation the catastrophe laughably known as the Affordable Care Act. On, and on and on it goes, yet without any restraint being exercised by the Congress as a check against the overreach of judicial authority. As pointed out in the previous essay (Check and Balance or Checkmate? – Part I) Congress has both the authority and the responsibility to impeach judges who refuse to abide within the Constitutional confines of their office, but they have seldom done so and even our founders such as Thomas Jefferson scoffed at impeachment as a reliable check against judicial overreach.

Robert Yates, a judge from New York and a delegate to the 1787 Constitutional Convention, became so upset with the deliberations of the other delegates that he left before the draft of the Constitution was completed and became an ardent opponent to the ratification of the Constitution. Writing under the pseudonym “Brutus”, he authored one scathing essay after another on how abusive the judicial branch of the new government would become if the Constitution was ratified. Herewith are just a few (and he wrote many more along the same line) of his warnings:

“They” [i.e., justices of the Supreme Court] “will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal….

From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it, appears probable….

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mould the government, into almost any shape they please.” (January 31, 1788)

I ask you – if I had not identified who authored these words and when, would you not have thought they were written by someone today for this is exactly what the judicial branch has done over and over again? Truly, Yates – “Brutus” – was prophetic. So, if impeachment is a “paper tiger” vis-à-vis judicial overreach, what can be done when such overreach occurs? This will be our next matter to address.

Our system of constitutional government boasts having a division of power among the three areas of governmental power (i.e., legislative, executive and judicial) and infusing them with power in such a way as to cause them to serve as a check against each other from increasing its power at the expense of the freedom and liberties of the citizens, thus creating a “balance of power.”

It is easy to see how the first two segments of our government serve to check the power of the other. The Executive (President) checks the power of the legislature primarily through the means of the veto. The Legislature (Congress) can override the veto by the high bar of 2/3 vote of both houses, and they also have the power of impeachment of members of the executive branch.

Yet it must be asked, “How and who places a check against the power of the Judiciary?” It is argued that the control is from both of the other branches, namely, judges must be nominated by the President and confirmed by the Senate. However, once appointed to the federal bench, then what? The answer, according to Alexander Hamilton in The Federalist No. 81 is impeachment:

“This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.”

It was for this reason that in The Federalist No 78 he had proclaimed that the judiciary was the weakest of the three branches of the federal government. Oh how wrong Mr. Hamilton was! Our Republic was not even fifty years old when Thomas Jefferson made this observation regarding the judiciary in his letter to Thomas Ritchie on December 25, 1820:

“But it is not from this branch of government [i.e., the legislature] we have most to fear. Taxes and short elections will keep them right. The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ (i.e., ‘good justice is broad jurisdiction’, which means the duty of a good judge is to enlarge the jurisdiction of his court);….Having found, from experience, that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life;….A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”

So, who was right – Jefferson, or his arch-nemesis, Hamilton? What did those who saw a danger in Article III of the Constitution when it was drafted, have to say on this topic, and what remedy can be had, if impeachment is, as Jefferson stated and has been proven to be true over the centuries, “a mere scare-crow” and “an impracticable thing” when it came to reining in a runaway judiciary? I’ll address this in the next essay as we examine this very real threat to our liberties by an unaccountable judiciary.

There is a clamor among some today that the so-called “assault rifle” known as the AR-15 should be outlawed from private ownership as it is a “military-style” weapon and is not protected under the second amendment. Is this argument constitutional?

To begin with, the AR-15 is a single-shot rifle and is not a “military-style” weapon simply because cosmetically it resembles our military’s M-16 or fully automatic AK-47. But, that’s not the issue, constitutionally speaking.

To answer this question requires an understanding as to why the second amendment was added. Today’s anti-AR-15 gun-grabbers have absolutely no knowledge of the history of the second amendment or of the reason for which it was added.

Although having the right to be armed for self-protection was a consideration by the founders, a greater reason was for the protection of liberty from the rise of tyranny within the central government. Consider the words of two of our greatest founding fathers – James Madison and Thomas Jefferson.

Madison, the author of the Bill of Rights, wrote that “[Tyranny cannot be safe] without a standing army,…and a disarmed populace.” Jefferson concurred in a letter to Madison: “The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”

The reason then, for the second amendment, is primarily to serve as a deterrent against the rise of tyranny within the federal government. Clearly, an AR-15 is not on the same level as an M-16 as a deterrent, but it is a sure better one than a bolt-action hunting rifle. As for the retort that such a position as this would allow for citizens to own bazookas, 50 caliber machine guns, flame throwers, etc., it is simply a reductio ad absurdum in an attempt to avoid giving a sound argument against the reason intended by our founders, namely, that we, as free citizens, have sufficient means to deter our government from usurping our liberties.

“Those that fail to learn the lessons of history are doomed to repeat it” – so goes the old adage. Read the history of just the past century – Nazi Germany, Communist Russia under Lenin and Stalin, China under Mao zedung, the Khmer Rouge of Cambodia’s “killing fields”, and many other murderous tyrannies, and you will find they all had one thing in common: they disarmed the populace as quickly and completely as possible.

After the tragic shooting at the Sandy Hook Elementary School, leftist Governor Cuomo of New York proclaimed “No one hunts with an assault rifle; no one needs ten bullets to kill a deer.” He’s right – no one does; but we do if we wish to deter anyone or group bent on using force to take away our unalienable rights and their attending liberties.

As Ayn Rand opined, “A government is the most dangerous threat to man’s rights: it holds a legal monopoly on the use of physical force against legally disarmed victims.” This is right on the mark as such was precisely the thinking of the founders behind the amendment.

In Federalist 51, James Madison stated “Justice is the end [i.e., goal or purpose] of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” As we see the abuse of power wielded by the FBI, the Department of Justice, and perhaps others in the Obama administration over the fourth amendment rights of those involved in the Trump presidential campaign, we must demand that justice against those who mishandled their public trust be brought to justice, else, as Madison warns, liberty for all of us will be lost.

However, in trying to bring justice back to being the foundation of our government and our society, we must look deeper into how it was that justice came to be lost. Baron Charles de Montesquieu began the opening of Part I, Book 8 in his monumental work, The Spirit of the Laws (published 1748), with these words: “The corruption of each government almost always begins with that of its principles.”

This then leads us to ask what principles within our government have been corrupted that led to its current state of corruption? To answer this question we must return to the principle that motivated our founders to take that step for freedom and independence, namely that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.” The import of this phrase is that all men are therefore to be treated equally, which is the essence of the concept of justice.

How then is justice for all to be achieved (as we say in the closing of our pledge of allegiance)? This question was answered by Frederic Bastiat in his treatise The Law in 1850. He posits the question repeatedly “What is the law?”, to which he consistently gave a one word answer: “justice.” Putting this all together we have the principle that justice can exist only when all men are treated as they were created, namely, equal under the law. When those of a supposed “higher class” are given a pass for violations of law that others would suffer severe punishment, then the principle of justice has died and along with it the principle of a representative government.

Returning to Montesquieu, he went on to give this analysis of how to reverse this situation when it occurs within a republic: “When a republic has been corrupted, none of the ills that arise can be remedied except by removing the corruption and recalling the principles; every other correction is either useless or a new ill” (Part I, Book 8, chapter 12).

How then are we to remove this corruption and return to our principle of justice? To answer this question we must look at who has brought about this corruption. In chapter 5 Montesquieu gave the answer: “Aristocracy is corrupted when the power of the nobles becomes arbitrary; there can no longer be virtue either in those who govern or in those who are governed.” Indeed, do not most of those in Congress, and especially in the higher levels of bureaucratic power, act aristocratically as though they are nobility? This is what happens when those who are given the reins of power refuse to relent them to others and remain in office year after year. Montesquieu continued, “Extreme corruption occurs when nobility becomes hereditary; the nobles can scarcely remain moderate.” We claim that we do not have nobles and hereditary claims to the right of power and position, but when incumbency is the rule rather than the exception, and those serving in departments of the government make a career of it, then most certainly we do have a class of “nobility” that has become for all intents and purposes “hereditary”, and as a result, extreme corruption sets in. Once this occurs Montesquieu states that “Corruption will increase among those who corrupt, and it will increase among those who are already corrupted.”

If ever there was a time, then, to “drain the swamp” that has become our national government, it is now. We as voters can do our part by voting our “nobles” and “aristocrats” out of their positions of power and encouraging their replacements to alter the laws so that those in these myriads of unconstitutional bureaucracies can be removed as well and their power over us be diminished. The ruins of our republic can be rebuilt and rise like a phoenix out of the ashes, but the time is getting very, very short.

Of all the great quotes of our founding fathers, my favorite comes from Patrick Henry’s speech on June 5, 1788 during the debates in the Virginia Constitutional Ratification Convention. In his speech he made the following comments:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.”

Indeed liberty, the second of our unalienable rights immediately after that of life, is the greatest of all earthly blessings for without it individuals cannot have much of a life; they cannot pursue happiness or realize their dreams or potential. So it is, then, that individuals form governments to achieve order and protection of their rights within their societies. Liberty, then, ought to be the starting and ending point of government.

Yet how was government to achieve this goal of securing the blessings of liberty for Americans in 1787 and for us today, their posterity? The answer is in the clause that follows – “do ordain and establish this Constitution for the United States of America.” Our Constitution was designed to achieve precisely what Patrick Henry stated was the purpose of government. Interestingly, though, when he gave that speech, he was speaking against the ratification of the Constitution as he feared it gave too much power to the central government and thus posed a direct threat to that precious jewel of liberty.

Yet how, exactly, is the Constitution to accomplish this goal? The answer lies in the clauses that precede this one – by establishing justice, insuring domestic tranquility, providing for the common defense and promoting the general welfare. When our national government limits itself to the specifics of these broad goals as developed in the articles and sections of the Constitution that follow the Preamble, it realizes this lofty goal envisioned by Patrick Henry; when it exceeds its limited, enumerated powers as delineated in the body of the Constitution, it not only threatens our liberty, it chips away at it.

I can think of no better way to wrap up this series on the Preamble than to reiterate those eloquent words above:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.”

As the election season approaches, may we all go into the voting booth with an eye of jealous attention and suspicion towards those in whom we are trusting to guard our liberties.

As I commented last week (The Preamble VII – “provice for the general welfare” (Part I)), the phrase “provide for the general welfare” has wrecked more havoc upon our country and put more of our liberties and freedom in jeopardy than perhaps any other clause in the Constitution (other than perhaps the “necessary and proper” clause). As I shared then, those who opposed the ratification of the Constitution back in 1787-1788 argued that this clause would be ripe for abuse by future politicians to put in place anything and everything they deemed to be good for “the general welfare,” and that is exactly what has happened.

So how do we convince members of Congress today that they are way out of their constitutional bounds with much, if not indeed most, of what they have done in inserting the government into our lives? The answer does not come from some lowly constitutional blogger such as myself – us “mere citizens” have no standing in the eyes of these scoffers at constitutional restraints. No, I have a better witness to rebut them – James Madison, commonly referred to as “the father of the Constitution.”

As one of the three authors of The Federalist Papers, he countered the arguments of the Anti-Federalists regarding their alarms over this phrase in essay number 41. In addressing the use of this phrase in the opening of Article I, Section 8 of the Constitution which contains the “enumerated powers” of Congress, he clearly defined the role of the phrase:

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

In other words, Madison is stating that the particular, itemized powers that follow in Section 8 of Article I are meant to define, clarify and limit the extent of the general phrase “to provide for the general welfare.” So when the question is posited as to what and how is the general welfare to be provided for via the general government, the answer is to read the list of limited powers that follow that were granted to the Congress. Anything therefore outside of that list that Congress involves itself in is instead of providing for the general welfare is destroying the general welfare. When excessive debt is accumulated to fund the myriad programs that are outside the purview of Congress’ authority, when programs rob individuals of their sense of personal responsibility and steal the personal property (of any kind) of citizens, that is not promoting the general welfare of the country but rather destroying that which made the early Americans unique, special and prosperous at its founding.

So then, just as we learned in our high school English classes in regards to writing a composition, you begin with a thematic statement that is broad and general that paints the full picture of what the paper is to be about, and then the rest of the following paragraphs develop, define and specify what is intended by that thematic statement. Such then is the meaning, and proper use and application of the phrase “provide for the general welfare.” Or as James Madison might say – “General Welfare does not mean ‘Anything you want!’”

Perhaps no more abused clause in all of the Constitution is this one regarding the “general welfare.” It has been the excuse for the national government to get involved in forcing citizens to save for retirement via the social security tax, to health care, to you name it. The clause is repeated in the opening of Article I, Section 8, which is important as I shall point out in Part II on this topic. Interestingly, when the southern states seceded and formed the Confederate States of America, their constitution mirrored the US Constitution in many ways, but glaringly omitted any reference to providing for the “general welfare.”

To ascertain the meaning of this clause I will spend this and the next (or possibly two) essay(s) taking a look at how the founders viewed this clause and how they explained it’s meaning. As I have pointed out in the beginning of this series on the Preamble, merely including this clause in it does not give any authority to Congress to do as they please in matters they determine to be for the “general welfare” as a preamble in not part of the Constitution as far as granting authority, but merely an introduction as to the purpose for those things enumerated within the Constitution.

This general welfare clause and the fear of its potential for abuse was one of the reasons those known as the “Anti-Federalists” opposed the ratification of the Constitution. The first witness I set before you is the author known by the pseudonym “Centinel”, who wrote the following on October 5, 1787:

“The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.”

Consider our situation today – how much of our income does Congress “seize upon” in taxes to provide for all of the programs it deems to be for the “general welfare” yet not authorized in the Constitution? Does not Centinel’s warning ring true?

The next witness to warn about this phrase was the outstanding Anti-Federalist known by the pseudonym “Brutus.” He had much to say about the potential for abuse of all three branches of government, and he has pretty much proved to be a prophet with unerring accuracy. Herewith is some of what he had to say about this clause in his essay number VI, written on December 27, 1787:

“It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views…

It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, etc. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”

It is very apparent, is it not, that the fears of these two founders regarding the abuse of this clause by those who were to come after them to justify the expansion of the power of government and the diminishment of individual liberties has indeed come to fruition? So, what was the response by those who argued in favor of the adoption of the Constitution? We will examine James Madison’ response in the next essay.

Perhaps no greater danger threatening the thirteen states in 1787 was their weak ability to defend themselves against the more powerful European countries. In 1775 when the War for Independence began, there was a rallying cry for liberty, yet even then only about one-third of the citizens answered that cry. So, now that they were thirteen independent and sovereign states, there wasn’t as strong of a bond to unite themselves against invasions.

It is significant that the phrase begins with the words “provide for”. During the War for Independence there was a constant shortage of supplies and funds for Washington’s army and it is an astounding feat that despite all of those shortages, America won its struggle for freedom. Following the end of the war, as I’ve pointed out previously, cooperation among the states was even worse. So it was necessary to have a stronger central government that had the authority to raise money to support an army and a navy so that all of the states could be defended as they would now be united under a common head.

The next term is also telling as it underscores my point in the preceding sentence. Under the new Constitution the states now shared in each other’s interests of maintaining that freedom they had fought so hard to achieve. What threatened one state now threatened them all, and all were committed to the defense of one another. This could not have come about had there not been a common central authority that they had all acquiesced to on the certain limited matters outlined in the Constitution.

One of the primary reasons for which individuals form communities, out of which governments are created, is to provide for the defense of the individuals by a defense of the whole. Thus was born the phrase, “United we stand, divided we fall.”

The final word, however, bears a brief focusing of our attention. The Constitution was not created to forge a new government that would be imperialistic, seeking to conquer other nations, but rather solely for the security of America. Unfortunately, we have at times veered off of that track, but it is important for us to remember in this day and time that the Constitution was formulated to provide for our defense, not to seek democratization of the world through misguided “nation building.” Our founders never intended for us to become the “policemen of the world”, but rather a strong and prosperous people that others would want to emulate without our having to “persuade” them via military means.

This part of the Preamble naturally flows out of the out of the first two elements listed in it. As was pointed out two essays ago (The Preamble – Part III: To Form a More Perfect Union), there wasn’t much domestic tranquility (i.e., peaceful existence) between the various states and that was a motive to create “a more perfect union.” Out of this “more perfect union” came the establishment of justice between the states, and eventually all of their citizens. Without justice (i.e., fair and equal treatment) there can be no tranquility. What parent has not had to deal with one of their children protesting his/her treatment and acting rebelliously because in comparison to the treatment of a sibling they felt they were not being treated the same (i.e., justly)? When that happens, there is no domestic tranquility! When Freddie Brown was killed in Ferguson, Missouri (and as testimony later indicated, for just cause), citizens in that city jumped to conclusion that it was not justified and took to the streets proclaiming “No justice, no peace”, and anarchy ensured there for several nights.

Our national government today has greatly exceeded its constitutional authority and in doing so we see the result – a disintegration of tranquility within our society. President Obama and his Marxist party, the Democrats, constantly harped on (and continue to harp on) the need to “spread the wealth” among the citizenry, which means government taking from those who earn and giving it to those who did not. Is that fair? Is that treating everyone with justice? No, so is it any wonder that it is often spoken of as “class warfare”? That is hardly a term applicable to a society that is experiencing domestic tranquility.

In my 65 years on this earth I have not seen this kind of discord among Americans since the turmoil of the civil rights era of the late 1950s’ and ‘60s’, and it is not by accident. The policies and rhetoric of the previous administration and its party has sought – and succeeded to a degree – of creating a disunity among us, and that has led to this explosion of feelings of injustice, both of which is destroying what should be a tranquil existence among a free people governed by a limited government that has left us alone to enjoy the blessings that are provided in lives lived in liberty.

The Preamble stipulates that the purpose for forming this more perfect union was to insure tranquility among the citizens of the various states, or in other words, to maintain peace among the citizenry. How was the government to accomplish this? By a just application of the law, which the Constitution following the Preamble, is to be supreme. If government would adhere to the limits placed upon it by the Constitution, it would go a long way towards insuring tranquility within our society.

What is “justice”, and how is it to be “established”? Simply put, justice is where everyone in a society is treated fairly as equals. When this is not the case we often speak of the “scales of justice” being weighted in favor of one party over another, meaning that the scales have been perverted and justice destroyed. But how is justice “established”? What was the import of listing it in the Preamble to the Constitution and placing it immediately following the purpose of forming “a more perfect union”?

As I pointed out in last week’s essay (The Preamble – Part III: “a more perfect union”), there was a breakdown in justice among the thirteen states; there was no “fairness” among their interaction with one another and between themselves and other nations. The Articles of Confederation were inadequate in righting this lack of justice and the consistency of it among the states, and so there was the need for the creating of “a more perfect union” via this new Constitution.

Returning to the second question with which I began this essay, just how is this Constitution to see that justice is established? The answer begins with the next to last article which proclaims that “This Constitution,…shall be the supreme Law of the Land.” But, you may be asking, what has being the “supreme Law of the Land” have to do with establishing justice? In his outstanding treatise The Law, Frederic Bastiat, towards the end, raises the question “What is law?”, to which he answered “Law is common force organized to prevent injustice; ̶ in short, Law is Justice.” In fact, no less than seven times in the closing of his treatise, Bastiat states that “law is justice.” Note his definition of law – “common force organized”. Such force is why people form societies and establish governments, handing over to it (temporarily, until government begins to abuse its power) the authority to enforce an organized application of law in order to preserve societal order and protect the lives, liberty and property of all. In other words, to ensure that everyone is treated fairly.

So, in turning Bastiat’s phrase around, we could also say that “justice is law”, i.e., justice is brought about by laws that are fair and are equally applicable to all. Such is the intent of the Constitution that follows the Preamble – to see that government is limited and that it treats all citizens under its authority equally and fairly. In other words, “to establish justice.”